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USING A SHIELD AS A SWORD: ARE INTERNATIONAL
ORGANIZATIONS ABUSING THEIR IMMUNITY?
Daniel D. Bradlow *
Over the course of his distinguished career, Henry Richardson has been
concerned with promoting justice for the countries and peoples of Africa. As
Professor Richardson has recognized, international organizations (IOs) have both
promoted and retarded justice in Africa. The topic of how they can be held
accountable for their actions is therefore one that is of continuing relevance to his
intellectual and political concerns.
The starting point for this discussion is that IOs have their own independent
legal personality and status as subjects of international law. Their international
rights and duties are determined and limited by their founding treaties. They may
be legally responsible for many of the international legal wrongs that they may
commit. They are also obliged to comply with any treaties that they sign and with
all applicable principles of customary international law and general principles of
law recognized by all nations.
Most IOs, unlike states, do not control territory or a population and so always
operate within the jurisdiction of one of their member states. This makes them
vulnerable to interference by these states. In order to mitigate this risk, IOs have
* SARCHI Professor of International Development Law and African Economic Relations, Centre
for Human Rights, University of Pretoria; Emeritus Professor of Law, American University
Washington College of Law. Email: [email protected]. All Rights Reserved. The author
thanks Nthope Mapefane for her research assistance.
1. See Henry J. Richardson, III, International Law and the Continuation of Sanctions
Against South Africa, 3 TEMP. INT‘L & COMP. L.J. 249, 249 (1989) (discussing the role of the
United Nations and International Court of Justice in bringing peace and stability to South Africa);
see also Henry J. Richardson, III, African Contributions to the Law of Peacekeeping, 96 AM.
SOC‘Y INT‘L L. PROC. 135, 135 (2002) (highlighting many IOs involved in addressing peace in
Africa).
2. See JAN KLABBERS, ADVANCED INTRODUCTION TO THE LAW OF INTERNATIONAL
ORGANIZATIONS 17 (2015) (―While the standard definition of international organizations does not
insist on organizations possessing international personality, there is a strong feeling that
organizations somehow need to possess such personality in order to be able to act under
international law.‖).
3. See id. at 22–26 (discussing the powers and duties of IOs).
4. See id. at 32 (indicating that although most IOs hold some privileges and immunities,
negotiations with the host state determine the precise scope of those privileges and immunities).
5. See Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
Advisory Opinion, 1980 I.C.J. 73, 89–91 (Dec. 20) (―International organizations are subjects of
international law and, as such, are bound by any obligations incumbent upon them under general
rules of international law, under their constitutions or under international agreements to which
they are parties.‖).
6. See KLABBERS, supra note 2, at 16 (indicating that most of first IOs were hosted by the
government of their home states).
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been granted qualified immunity, usually referred to as functional immunity, from
the jurisdiction of their member states. This means that the IOs and their officials
are immune from domestic judicial oversight as long as they are performing the
functions that the member states have delegated to them in their founding treaties.
For most of the twentieth century, this grant of functional immunity made
sense for two reasons. First, the founding states envisaged that IOs would have
limited capacity to act on their own initiative and that they would only undertake
specific operations with the consent and active support of their member states.
Thus, IOs would only undertake activity on the territory of a member state or
involving the citizens of that state at the invitation of its government and in
cooperation with its officials. The citizens of the state, therefore, would look to
hold their government accountable if they disapproved of or they suffered any
harm because of the IO‘s activity. The state, if it deemed it appropriate, could seek
to hold the IO accountable through the IO‘s governance arrangements, in which
the state participated.
This arrangement ensured that the IO respected the sovereignty of the state. In
addition, it allowed citizens to hold their government, which had invited the IO to
enter its territory and approved its operations, either legally or politically
accountable for the IO‘s actions. The citizens of the state did not have a direct
mechanism for holding the IO accountable. However, if the citizens did not
approve of the IO‘s actions, they could petition their government to deny the IO
access to the state or to use the levers of institutional governance to hold the IO
accountable.
The second reason why functional immunity made sense was that individuals
were not generally recognized as subjects of international law. This meant that
7. See id. at 30 (―One of the consequences of functionalist theory is the idea that if
organizations are to exercise their functions effectively, they should be allowed to work without
any interference.‖).
8. See id. (noting that these functional privileges and immunities are considered practical
exception to host state‘s jurisdiction).
9. See id. at 16, 30–31 (noting the close relationship between most early IOs and their host
states); see generally PETER H.F. BEKKER, THE LEGAL POSITION OF INTERGOVERNMENTAL
ORGANIZATIONS: A FUNCTIONAL NECESSITY ANALYSIS OF THEIR LEGAL STATUS AND
IMMUNITIES (1994).
10. See KLABBERS, supra note 2, at 31 (indicating the first IOs were financed and staffed by
the host state).
11. See id. at 32 (noting the host state‘s involvement in the negotiation of an IO‘s privileges
and immunities).
12. See id. at 30–31 (noting that the host state‘s laws continued to apply to the IOs even if
those laws could not be enforced against the IO).
13. See ANTONIO CASSESE, THE HUMAN DIMENSION OF INTERNATIONAL LAW: SELECTED
PAPERS 88–89 (2008) (discussing the expansion of universal human rights). Prior to the key
international human rights treaties entering into force, individuals did not have a well-accepted
status as subjects of international law. This began to change once these treaties became
operational and to gain wide acceptance. See IAN BROWNLIE, PRINCIPLES OF PUBLIC
INTERNATIONAL LAW 553–55 (7th ed. 2008) (discussing brief history of the formation of
individual human rights). The U.N. Charter provides a base line for human rights. Id. at 555.
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individuals had no international legal standing and so they could not bring a claim
in any international forum against the IOs. Any wrong that an IO caused was,
under international law, an injury to their state, who could then bring a claim
against the IO. If they tried to bring a domestic suit they would, in effect, be
interfering with the functionality of the IO, which is why functional immunity was
granted to protect the IO. As a result, domestic courts usually dismissed cases
brought against IOs on jurisdictional grounds.
This paper argues that with the passage of time, however, both of these
reasons have lost their validity. First, IOs have expanded the scope of their
activities to include operations that involve exerting direct authority over and/or
directly impacting the lives of individual citizens and communities. As a result of
these expanded operations and the fact that their functional immunity has not been
reduced, IOs are currently operating with less public accountability than
governments. Second, developments in human rights law since the Second World
War mean that individuals now have rights that are cognizable under international
law. One of these rights is the right to an effective remedy.
IO immunity is also becoming politically untenable. IOs cannot credibly
continue to advocate that their member states should respect human rights and
practice good governance while they fail to respect their stakeholders‘ right of
access to an effective remedy. This can be seen most clearly in regard to the
activities of the United Nations (U.N.), the World Bank Group (WBG), and the
International Monetary Fund (IMF), which are the three IOs this paper focuses on.
In order to make this argument, this paper is divided into five sections. The
first is a brief overview of the doctrine of IO immunity. The second discusses the
evolution in IO operations and its implications for IO immunity. The third is a
discussion of the right to an effective remedy as a principle of customary
international law. The fourth considers how this principle should be applied to IOs.
The fifth concludes that the doctrine of immunity is no longer appropriate without
adaptation.
14. Nottebohm (Liech. v. Ger.), Second Phase Judgment, 1955 I.C.J. Rep. 4, 24 (April 6);
Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain), Second Phase Judgment, 1970
I.C.J. Rep. 3, 33 (Feb. 5).
15. See Aaron I. Young, Deconstructing International Organization Immunity, 44 GEO. J.
INT‘L L. 311, 312–14, 324–28 (2012) (indicating that courts continue to grant absolute immunity
to international organizations). For example, the United States Court of Appeals for the D.C.
Circuit found the Inter-American Development Bank (IDB) entitled to absolute immunity in a
suit to garnish wages. Id. at 312–13 (citing Atkinson v. Inter-Am. Dev. Bank, 156 F.3d 1335,
1336–37 (D.C. Cir. 1998)).
16. See infra Section II (discussing the evolution of IO activity and immunity).
17. See CASSESE, supra note 13, at 430–90 (discussing the recognition of international
human rights).
18. See infra Section III (discussing the development of the right to an effective remedy).
19. See infra Section III.
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I. IOS AND FUNCTIONAL IMMUNITY
The first modern IOs were technical organizations, focused on issues such as
managing navigation on specific cross-border rivers or dealing with specific issues
such as postal services. Given their specialized mandates, many of these
organizations did not have and generally did not need immunity. The necessity of
immunity for IOs and their officials became more important after the First World
War, when the League of Nations was created to preserve international peace and
security in global governance. The founding states decided that its officials
needed the equivalent of diplomatic immunity so that they could operate
effectively and without interference from their member states.
The immunity of these officials did not prevent member states undermining
the League. Consequently, after the Second World War, the architects of the
institutional arrangements for global governance sought to ensure that IOs had the
legal authority and protection needed to perform their intended functions. They
endowed them with international legal personality so that they would have the
status of subjects of international law.
The architects of the global governance order also granted the three IOs
discussed in this article and their officials functional immunity so that they could
perform their intended functions free from member state interference. Article 105
of the U.N. Charter stipulates that the U.N. should have the immunity needed to
perform its functions. Article IX of the Articles of Agreement of the IMF states
that it shall have immunity from judicial process and that its officers shall be
immune for actions performed in their official capacity, unless the organization
20. See BOB REINALDA, ROUTLEDGE HISTORY OF INTERNATIONAL ORGANIZATIONS:
FROM 1815 TO THE PRESENT DAY 90–91 (2009) (indicating that a new form of IO, the public
international union, came into being around 1865 to serve functional aims, such as regulating
telecommunications and postal traffic).
21. See id. (giving examples of some of the specialized mandates of IOs in the nineteenth
century); see also Josef L. Kunz, Privileges and Immunities of International Organizations, 41
AM. J. INT‘L L. 828, 829–30 (1947) (―Prior to 1920 granting of diplomatic privileges and
immunities to international organizations was clearly an exception, based on particular treaties or
statutes.‖).
22. See League of Nations Covenant pmbl. (establishing the League of Nations to achieve
international peace and security); see also Kunz, supra note 21, at 829–30 (noting a great increase
in the number of grants of diplomatic immunity to international organizations after 1920).
23. See League of Nations Covenant art. 7 (providing officials of the League diplomatic
immunity while engaged in the business of the League); see also Kunz, supra note 21, at 832
(indicating the League of Nations Covenant gives to representatives of Members and the agents
of the League diplomatic privileges and immunities).
24. See Kunz, supra note 21, at 839 (discussing recognition of functional immunity of the
U.N. after World War II).
25. See id. at 848 (indicating that although only sovereign states are ordinarily recognized
as full persons in international law, non-states can be recognized if international personality is
expressly or impliedly granted).
26. See BEKKER, supra note 9, at 1–2, 54–63 (discussing deliberate recognition of legal
personality of U.N. after World War II).
27. U.N. Charter art. 105.
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explicitly waives immunity. Article VII of the Articles of Agreement of the
International Bank for Reconstruction and Development (IBRD), an organization
within the WBG, stipulates that it shall have the immunities and privileges set
forth in Article VII in order ―[t]o enable the Bank to fulfill the functions with
which it is entrusted‖. The article goes on to specify that an action can only be
brought against the IBRD in a member state in which it has an office, has
appointed an agent for service of process or, has issued securities. It adds that its
officers will also have immunity for acts performed within their official capacity.
In all three cases—the IMF, the IBRD and the U.N.— their articles specify that the
property of the IO is immune from attachment before final judgment against the
IO.
The member states of these IOs decided to elaborate on the meaning of this
immunity in subsequent international treaties. The U.N. member states elaborated
on the nature of the U.N.‘s immunity in the Convention on the Privileges and
Immunities of the United Nations (CPIUN). There is an analogous treaty on the
privileges and immunities of the U.N.‘s specialized agencies, which includes both
the IMF and the WBG. The provisions of these treaties make clear that the
immunity of the U.N. is limited to functional immunity. Section 29 of the CPIUN
stipulates that the U.N. is expected to provide ―appropriate modes of settlement‖
28. Articles of Agreement of the IMF, Art. 9, 60 Stat. 1401, 2 U.N.T.S. 39 [hereinafter IMF
Articles of Agreement].
29. See About the World Bank, WORLD BANK, http://www.worldbank.org/en/about (last
visited Feb. 27, 2017) (listing the organizations that make up the WBG).
30. Articles of Agreement of the International Bank for Reconstruction and Development,
Art. VII, § 1, Dec. 27, 1945, 2 U.N.T.S. 134 [hereinafter IBRD Articles of Agreement].
31. Id. § 3.
32. Id. § 8.
33. See id. § 3 (―Actions may be brought against the Bank only in a court of competent
jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent
for the purpose of accepting service or notice of process, or has issued or guaranteed securities.
No actions shall, however, be brought by members or persons acting for or deriving claims from
members. The property and assets of the Bank shall, wheresoever located and by whomsoever
held, be immune from all forms of seizure, attachment or execution before the delivery of final
judgment against the Bank.‖); IMF Articles of Agreement, supra note 28, 60 Stat. at 1413 (―The
Fund, its property and its assets, wherever located and by whomsoever held, shall enjoy immunity
from every form of judicial process except to the extent that it expressly waives its immunity for
the purpose of any proceedings or by the terms of any contract.‖); U.N. Charter art. 105(1) (―The
Organization shall enjoy in the territory of each of its Members such privileges and immunities as
are necessary for the fulfilment of its purposes.‖); Convention on the Privileges and Immunities
of the United Nations art. II(2), Feb. 13, 1946, 21 U.S.T. 1419, 1 U.N.T.S. 15 [hereinafter
CPIUN] (―The United Nations, its property and assets wherever located and by whomsoever held,
shall enjoy immunity from every form of legal process except insofar as in any particular case it
has expressly waived its immunity. It is, however, understood that no waiver of immunity shall
extend to any measure of execution.‖).
34. CPIUN, supra note 33.
35. Convention on the Privileges and Immunities of the Specialized Agencies, approved
Nov. 21, 1947, 33 U.N.T.S. 262 (entered into force Dec. 2, 1948).
36. See, e.g., CPIUN, supra note 33, 21 U.S.T. at 1426–30, 1 U.N.T.S. at 21–23.
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for disputes arising from the contracts that it entered into and for ―other disputes of
a private law character to which the United Nations is a party.‖
It is interesting to note that Section 24 of the Convention on the Privileges and
Immunities of the Specialized Agencies deals with the situation in which an IO
abuses its immunity. The section provides that the state and the IO should try and
resolve the matter through consultations. If this does not result in a satisfactory
outcome, the question of whether the abuse ―occurred shall be submitted‖ for an
advisory opinion of the International Court of Justice (ICJ). If the ICJ finds abuse,
the state shall have the right, after notification, to deny the IO the benefits of the
privilege or immunity that has been abused.
Some states have domesticated the principle of IO immunity in statutes
stipulating that IOs would have jurisdictional immunity in their domestic courts.
Most importantly, since it is the home for the headquarters of all three IOs
discussed in this paper, the United States (U.S.) in 1945 promulgated the
International Organizations Immunity Act, which provides that organizations
declared by the President to be IOs ―shall enjoy the same immunity from suit . . .
as is enjoyed by foreign governments‖.
This approach to IOs was prudent because the post-World War II IOs were
novel institutions. It was unclear how member states would respond when they
began implementing their assigned functions. While the U.N. assumed many of the
League of Nations‘ functions, it did so with some innovations that limited the
sovereignty of its member states, such as the veto for the permanent members of
the Security Council, the Security Council‘s capacity to take coercive actions to
protect peace and security under Chapter VII of the U.N. Charter, and the General
Assembly‘s ability to adopt resolutions by majority vote. The Bretton Woods
Institutions in some ways were even more innovative. In the case of the IMF, the
37. CPIUN, supra note 33, at 30.
38. Convention on the Privileges and Immunities of the Specialized Agencies, supra note
35, at 277–78.
39. Id.
40. Id.
41. Id.
42. See infra Section III.; see, e.g., International Organizations Immunities Act of 1945, 22
U.S.C. § 288a(b) (2012); see also THE PRIVILEGES AND IMMUNITIES OF INTERNATIONAL
ORGANIZATIONS IN DOMESTIC COURTS (August Reinsich ed. 2013) [hereinafter PRIVILEGES AND
IMMUNITIES IN DOMESTIC COURTS] (examining variation in IO immunity among domestic courts
in depth).
43. International Organizations Immunities Act of 1945 § 288a(b).
44. Id.
45. U.N. Charter ch. VII.
46. In July 1944, forty-three countries met in Bretton Woods, New Hampshire for the
Bretton Woods Conference. The countries set up the meeting to rebuild the shattered post-war
economy and to promote international economic cooperation. This meeting resulted in the
creation of the Bretton Woods Institutions: the World Bank and the International Monetary Fund.
See What are the Bretton Woods Institutions?, BRETTON WOODS PROJECT (Aug. 23, 2005),
http://www.brettonwoodsproject.org/2005/08/art-320747/ (explaining the objectives and results
of the Bretton Woods conference).
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participating states agreed that they would create an international monetary system
overseen by an international organization with the authority to monitor state
compliance with the rules of the system. The IBRD was authorized to raise funds
in capital markets and then loan it to states or with state guarantees to support
government-sponsored projects in their member states. It was unclear how states
would react if the IBRD sought to enforce its rights under their loan agreements
against a debtor state.
It is important to note that the IO immunity granted after the Second World
War was not conceived to preclude any form of IO accountability to its
stakeholders. In fact, it was anticipated that the IOs would offer an alternative
means of dispute settlement in the case of disputes of a ―private law character‖ and
would waive their immunity in their contractual relations with funders and
suppliers. Thus, Section 29 of the CPIUN stipulates that the U.N. should create a
means of resolving disputes involving contractual claims and other cases of a
―private law character.‖ The IBRD was expected to waive its immunity in its
transactions with private creditors and private contractors and suppliers.
Similarly, it was anticipated that the IMF could ―expressly waive[] its immunity
for the purpose of any proceedings or by the terms of any contract.‖
There are a few additional points about IO immunity that should be noted.
First, since the IOs are only granted functional immunity, it is important to identify
their functions. These are stipulated in the IOs‘ founding treaties. Pursuant to the
U.N. Charter, the U.N.‘s purposes are: maintaining worldwide peace and security,
fostering cooperation between nations in order to solve economic, social, cultural,
or humanitarian problems, and promoting human rights. The purpose of the
WBG, pursuant to its Articles of Agreement, is to promote economic and social
progress in developing countries by helping to raise productivity and living
standards of their citizens. The purpose of the IMF, according to its Articles of
Agreement, in general terms, is to oversee and maintain a stable international
monetary system. In all three cases, the functional immunity of the IOs is
47. Second Amendment of the Articles of Agreement of the International Monetary Fund,
Art. IV, § 3(a) approved Apr. 30, 1976, 29 U.S.T. 2203, 2209 (entered into force Apr. 1, 1978).
48. IBRD Articles of Agreement, supra note 30, Art. III.
49. CPIUN, supra note 33, at 30.
50. Id.
51. Id.; Convention on the Privileges and Immunities of the Specialized Agencies, supra
note 35, at 280.
52. IMF Articles of Agreement, supra note 28, at 1413.
53. UN Charter art. 1, ¶ 4.
54. See IBRD Articles of Agreement, supra note 30, at 134 (―To assist in the reconstruction
and development of territories of members by facilitating the investment of capital for productive
purposes, including the restoration of economies destroyed or disrupted by war, the reconversion
of productive facilities to peacetime needs and the encouragement of the development of
productive facilities and resources in less developed countries.‖).
55. IMF Articles of Agreement, supra note 28, at 1401.
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understood to also apply to their implied powers.
Second, unlike diplomats, IO officials are only granted immunity when they
are on official business. This made sense since the purpose of the immunity is to
protect the functioning of the IO rather than the official per se. Consequently, the
officials would only need immunity while actually undertaking their official
business.
Third, as can be seen from the CPIUN, it was assumed that the IOs should be
willing to either waive their immunity when dealing with commercial suppliers or
provide a reasonable alternative remedy. Thus, these three IOs rely on arbitration
as the alternative remedy in dealing with suppliers and other contractors.
Fourth, IOs have long recognized that, in order to attract qualified staff and
out of respect for the rights of these employees, they needed to offer their
employees some alternative forum to domestic courts for dealing with employment
related issues. The League of Nations and the International Labour Organization
(ILO), established an international administrative tribunal in 1927 to hear
employment cases relating to IOs. After the demise of the League of Nations, the
ILO took over the tribunal, which continues to function. The three IOs discussed
in this article each have their own tribunals to deal with employment matters.
Fifth, it was understood that the IOs might, on occasion, be a party in a torts
claim. The member states agreed that the U.N. would deal with individual claims
under the ―private law character‖ exception in Section 29 of the CPIUN. The IMF
56. Reparation for Injuries Suffered in the Service of United Nations, Advisory Opinion,
1949 I.C.J. Rep. 174, 182 (―Under International law, the Organization must be deemed to have
those powers which, though not expressly provided in the Charter, are conferred upon it by
necessary implication as being essential to the performance of its duties.‖)
57. CPIUN, supra note 33, at 1432; IMF Articles of Agreement, supra note 28, at 1414;
IBRD Articles of Agreement, supra note 30, at 182.
58. CPIUN, supra note 33, at 1434; see also KLABBERS, supra note 2, at 34 (noting CPIUN
provides that the U.N. shall make an effort to settle private claims, likely because otherwise
commercial service providers would not work with the U.N. for fear of not getting paid and being
unable to enforce contractual obligations).
59. CPIUN, supra note 33, at 1438 (―The United Nations shall make provisions for
appropriate modes of settlement of . . . disputes arising out of contracts or other disputes of a
private law character to which the United Nations is a party.‖).
60. August Reinisch, The Immunity of International Organizations and the Jurisdiction of
Their Administrative Tribunals 1 (Int‘l Law & Justice Working Papers, Paper No. 2007/11,
2007), http://www.iilj.org/wp-content/uploads/2016/08/Reinisch-The-Immunity-of-InternationalOrganizations-and-the-Jurisdiction-of-Their-Administrative-Tribunals-2007-2.pdf (explaining the
importance of establishing alternative tribunals to settle IO employment disputes).
61. See ILO Administrative Tribunal, INT‘L LABOR ORG., http://www.ilo.org/tribunal/lang
—en/index.htm (last visited Feb. 19, 2017) (brief history on the ILO Administrative Tribunal).
62. Id.
63. IMF Administrative Tribunal, INT‘L MONETARY FUND, http://www.imf.org/external/im
fat/ (last visited April 5, 2017); World Bank Administrative Tribunal, WORLD BANK GRP.,
https://webapps.worldbank.org/sites/WBAT/Pages/default.aspx (last visited Feb. 19, 2017); U.N.
OFFICE OF ADMIN. OF JUSTICE, http://www.un.org/en/oaj/ (last visited Feb. 26, 2017).
64. See Kristen Boon, The United Nations as Good Samaritan: Immunity and
Responsibility, 16 CHI. J. INT‘L L. 341, 354 (2016) (explaining how Section 29 of the CPIUN
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and IBRD, as financial institutions, were perceived to be less likely to face such
claims outside the context of their relations with their employees and suppliers.
Nevertheless, the CPIUN orders all specialized agencies to create appropriate
settlement methods for disputes arising out of a ―private law character.‖ It also
has a provision which anticipates that the U.N. could lose its immunity if it abuses
this privilege.
To summarize, it made sense in the immediate post-World War II period to
grant IOs functional immunity. They were expected to play new roles in
international affairs and could be vulnerable to pressure from and to interference
by their member states. The most effective way to protect IOs from such pressure
and interference was to grant them, their officials, their property, and their records
immunity from the jurisdiction of their member states when they were performing
their mandated functions. In those relatively rare cases where the IOs did harm
private citizens, those cases could be addressed through the means of dispute
settlement envisaged in the CPIUN or in the analogous convention for specialized
agencies.
II. THE EVOLUTION OF IO IMMUNITY
The concern that states might use their authority over the IOs operating in
their territories to interfere with or to undermine IOs has proven to be largely
unfounded. With rare exceptions, member states have respected the legal and
operational independence of IOs and their officials. In fact, over time member
states of these IOs have acquiesced, either explicitly or implicitly, to the IOs
performing a broader range of functions. This has resulted in an increase in the
number and intensity of direct interactions between IOs and the citizens of their
member states. However, this has not been accompanied by any adjustment in the
distinguishes between public and private claims).
65. See Review of the Fund’s Systems for Resolving Staff Disputes, INT‘L MONETARY FUND
(Apr. 15, 2002), http://www.imf.org/external/hrd/dr/ (emphasizing IMF‘s internal procedure for
resolving employment disputes to avoid individual tort claims); see also World Bank, Alternative
dispute resolution—when it works, when it doesn’t, PREMNOTES, Sept. 2009 (emphasizing
World Bank‘s alternative dispute resolution in order to avoid individual tort claims).
66. Convention on the Privileges and Immunities of the Specialized Agencies, supra note
35, at 280.
67. Id. at 276.
68. Two exceptions are the Mazilu and the Cumaraswamy cases, both of which involve
state treatment of their own citizens. See [The ECOSOC initiated case concerning the
Applicability of Article IV, Section 22 of the Convention on Privileges and Immunities of the
United Nations] (Mazilu Case) 1989 I.C.J. Rep. 177; [Difference Relating to Immunity from
Legal Process of a Special Rapporteur of the Commission on Human Rights] (Cumaraswamy),
Advisory Opinion, 1999 I.C.J. Rep. 43.
69. See Kim R. Holmes, Assistant Secretary for International Organization Affairs, U.S.
Dep‘t of State, Remarks to the World Federalist Association and Oxfam (Dec. 5, 2003),
https://2001-2009.state.gov/p/io/rls/rm/2003/26949.htm (praising international organizations for
reinforcing global advance of democracy).
70. See Mareike Oldemeinen, How has globalisation changed the international system?, E-
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immunity of the IOs. Instead, the functional immunity of the IOs has expanded to
cover their new activities. This means that the immunity that IOs acquired to
shield them from interference by their member states and to protect their
operational independence has become a sword with which they can ward off
attempts by adversely affected people to hold IOs accountable for the way in
which they use their power. The significance of these developments can be best
understood if each IO is considered separately.
The U.N. now plays a greater operational role than originally anticipated in
those member states that have needed help ending internal conflicts or dealing with
humanitarian crises. For example, it assumed interim governmental functions in
countries undergoing political transitions like Namibia, Timor L‘Este,
Cambodia, and Kosovo. It has also assumed responsibility for assisting
vulnerable populations, including refugees, in countries like Bosnia, Central
African Republic, Liberia, and Rwanda; and it has helped countries like Haiti
INTERNATIONAL RELATIONS (July 27, 2011), http://www.e-ir.info/2011/07/27/how-hasglobalisation-changed-the-international-system/ (―An intensification of cross-border interactions
and interdependence between countries has brought about major change in the international
system.‖).
71. See KLABBERS, supra note 2, at 23 (indicating IOs can imply certain powers from
existence of explicitly granted powers).
72. See U.N. DEP‘T OF PEACEKEEPING OPERATIONS, Namibia - UNTAG Mandate,
http://www.un.org/en/peacekeeping/missions/past/untagM.htm (last visited Feb. 20, 2017)
(―UNTAG was established . . . to assist the Special Representative of the Secretary-General to
ensure the early independence of Namibia through free and fair elections under the supervision
and control of the United Nations.‖).
73. See generally Geoffrey Robinson, Report Commissioned by the U.N. Office of the High
Commissioner for Human Rights (OHCHR), East Timor 1999 Crimes against Humanity (July
2003), http://www.cavr-timorleste.org/chegaFiles/finalReportEng/12-Annexe1-East-Timor-1999GeoffreyRobinson.pdf.
74. See U.N. DEP‘T OF PEACEKEEPING OPERATIONS, Cambodia - UNTAC Background,
http://www.un.org/en/peacekeeping/missions/past/untacbackgr1.html (last visited Feb. 20, 2017)
(explaining the transition U.N. oversaw in Cambodia that led to restoration of civil rule after
years of civil war and foreign intervention).
75. See U.N. DEP‘T OF PEACEKEEPING OPERATIONS, UNMIK: United Nations Interim
Administration Mission in Kosovo, http://www.un.org/en/peacekeeping/missions/unmik/backgro
und.shtml (last visited Feb. 20, 2017) (explaining U.N. intervention in Kosovo that followed
massive human rights violations by Serbian authorities there).
76. See U.N. DEP‘T OF PEACEKEEPING OPERATIONS, Bosnia and Herzegovina - UNMIBH Background, http://www.un.org/en/peacekeeping/missions/past/unmibh/background.html (last
visited Feb. 20, 2017) (explaining U.N.‘s contribution to establishment of the rule of law in
Bosnia and Herzegovina).
77. See U.N. DEP‘T OF PEACEKEEPING OPERATIONS, MINUSCA: United Nations
Multidimensional Integrated Stabilization Mission in the Central African Republic,
http://www.un.org/en/peacekeeping/missions/minusca/ (last visited Feb. 20, 2017) (explaining the
U.N.‘s involvement with human rights protection in Central African Republic).
78. See U.N. DEP‘T OF PEACEKEEPING OPERATIONS, UNMIL: United Nations Mission in
Liberia, http://www.un.org/en/peacekeeping/missions/unmil/ (last visited Feb. 20, 2017)
(explaining the U.N.‘s assistance in implementing the cease fire agreement in Liberia).
79. See U.N. DEP‘T OF PEACEKEEPING OPERATIONS, Rwanda - UNAMIR Background,
http://www.un.org/en/peacekeeping/missions/past/unamirS.htm (last visited Feb. 20, 2017)
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rebuild after significant natural disasters. The U.N. Development Program is also
involved in development projects that directly impact on the lives of the citizens of
these countries.
The IBRD‘s member states created the International Development
Association (IDA) to fund development projects in low income countries, the
International Finance Corporation (IFC) to fund private sector development, and
the Multilateral Investment Guarantee Agency (MIGA) for providing political
risk insurance for foreign investors. This group of entities, collectively referred to
as the WBG, has become involved in a much broader range of activities in their
member states than just funding hard infrastructure projects. They are now helping
their member states draft statutes, reforming government institutions and whole
sectors of economic activity, and expecting their member states to pay more
attention to the social, environmental, cultural, and institutional implications of
their projects and programs. The WBG has also increased its direct consultations
with the citizens of those member states in which it operates about the projects
they are funding or supporting.
The IMF was forced to modify its activities when the Bretton Woods system
of par value was replaced with a system that allowed member states to choose their
own exchange rate regimes. The IMF could no longer restrict the scope of its
(explaining the U.N.‘s involvement in Rwanda to prevent abusive use of military force).
80. See U.N. DEP‘T OF PEACEKEEPING OPERATIONS, MINUSTAH: United Nations
Stabilization Mission on Haiti, http://www.un.org/en/peacekeeping/missions/minustah/ (last
visited Feb. 20, 2017) (explaining the U.N.‘s involvement in stabilizing aftermath created by
earthquake in Haiti).
81. See U.N. DEV. PROGRAMME, Overview, http://www.undp.org/content/undp/en/home/ou
rwork/overview.html (last visited Feb. 20, 2017) (introducing objectives and operations of the
U.N. development programme).
82. International Development Association Articles of Agreement, Jan. 24, 1960, 11 U.S.T.
2284, 439 U.N.T.S. 249 [hereinafter IDA Articles of Agreement].
83. International Finance Corporation Articles of Agreement, May 25, 1955, 7 U.S.T. 2197,
264 U.N.T.S. 117 [hereinafter IFC Articles of Agreement].
84. Convention Establishing the Multilateral Investment Guarantee Agency, opened for
signature Oct. 11, 1985, T.I.A.S. No. 12089, 1508 U.N.T.S. 99 (entered into force Apr. 12, 1988)
[hereinafter MIGA Convention].
85. See generally DEVESH KAPUR ET AL., THE WORLD BANK: ITS FIRST HALF CENTURY
(1997).
86. See Press Release, World Bank, World Bank Board Approves New Environmental and
Social Framework (Aug. 4, 2016), http://www.worldbank.org/en/news/press-release/2016/08/04
/world-bank-board-approves-new-environmental-and-social-framework (discussing safeguards
review and adoption of new environmental and social framework); Access to Information:
Overview, WORLD BANK, http://www.worldbank.org/en/access-to-information/overview (last
visited Feb. 26, 2017) (providing an overview on the World Bank‘s Policy on Access to
Information).
87. See JAMES M. BOUGHTON, THE SILENT REVOLUTION: THE INTERNATIONAL
MONETARY FUND 1979–1989, at xviii (2001) (explaining that par value was the gold equivalent
of one U.S. dollar, which changed to floating exchange rate system, where each country designed
own exchange rate policies pegged to another currency).
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surveillance to those issues that directly affect the par value of a country‘s
currency. The IMF now concerns itself with any macroeconomic issues that could
affect the balance of payments and exchange rate of a country. In addition, the
conditions the IMF attaches to its financing have come to include anything that
could affect the country‘s ability to reduce its budget and current account deficits.
For example, the conditions attached to its funding have included such issues as
privatization of specific state owned enterprises and tax and pension system
reforms. The IMF also now plays a critical role in helping countries manage
sovereign debt crises, using its ability to provide financing to pressure either
sovereign debtors or their creditors to reach an agreement. In short, the IMF has
evolved from a purely international monetary institution into a macroeconomically focused institution that gets involved in a broad range of advisory
reviews, capacity building initiatives, and funding operations in its member
countries.
The expansion in the scope of these IO operations has changed the universe of
actors with which they interact. All three IOs are now engaged in activities that
involve decisions and actions that can directly influence the policies, projects, and
governance of their member states. This means that, in effect, they are playing a
role in the policy-making and implementation process of many of their member
states. Their decisions and actions are directly affecting the communities and
citizens of these states.
The problem is that, unlike the governments in these states, IOs are not
directly accountable to the citizens of these countries. First, IOs are immune
because their functional immunity has expanded to the same degree that their
mission has expanded. Second, primarily because these citizens and communities
do not have a contractual relationship with IOs in their states, they do not have
access to an alternate forum in which they can seek to hold IOs accountable for
88. See About the IMF, INT‘L MONETARY FUND, http://www.imf.org/en/About (last visited
Feb. 16, 2017) (describing how the IMF‘s monitoring is done specifically through surveillance,
lending, and capacity development).
89. See IMF Conditionality, INT‘L MONETARY FUND (Sept. 27, 2016), https://www.imf.org
/en/About/Factsheets/Sheets/2016/08/02/21/28/IMF-Conditionality (stating that conditionality is
used by the IMF to ensure resources are safeguarded and nations do not use harmful measures to
make payments).
90. See IMF Policy Paper: Reforming the Fund’s Policy on Non-Toleration of Arrears to
Official Creditors, IMF 15 (Dec. 2015), http://www.imf.org/external/np/pp/eng/2015/101515.pdf
(recommending that creditors and debtors be made to reach consensus on debt).
91. See generally id.
92. See generally THE EXERCISE OF PUBLIC AUTHORITY BY INTERNATIONAL
INSTITUTIONS: ADVANCING INTERNATIONAL INSTITUTIONAL LAW (Armin von Bogdandy et al.
eds., 2010).
93. See PRIVILEGES AND IMMUNITIES IN DOMESTIC COURTS, supra note 42, at 8 (indicating
that in practice, functional immunity frequently leads to de facto absolute immunity); see
generally Georges v. United Nations, 84 F. Supp. 3d 246 (S.D.N.Y. 2015); PIETER H.F. BEKKER,
THE LEGAL POSITION OF INTERGOVERNMENTAL ORGANIZATIONS: A FUNCTIONAL NECESSITY
ANALYSIS OF THEIR LEGAL STATUS AND IMMUNITIES (1994).
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their actions.
The fact that affected citizens cannot hold the IOs accountable demonstrates
that it is becoming untenable to maintain that IOs should be immune from the
jurisdiction of their member states so long as they are performing their designated
functions. It is hard to see why IOs should be less accountable to affected people
than governments when acting in comparable circumstances. This is particularly
the case if IOs, through their actions or inactions, cause harm to those who are
impacted by their operations.
Unfortunately, the problems created by IO immunity can be profound. For
example, people in Haiti and Kosovo have suffered death and serious health
problems because of the decisions and actions of the U.N. The IMF has required
member states such as Greece to make significant cuts in its health and education
budgets without fully assessing the impact that these cuts have on the rights of the
citizens of these countries to health and education. The WBG‘s failure to comply
with its own policies and procedures in its operations has resulted in it funding
projects and programmes that have had serious adverse effects on people and
communities in its borrower countries. If governments had taken these decisions
and actions, the affected individuals would have been able to hold the government
officials legally or politically accountable.
IOs, to some extent, have taken steps to address this problem. During the
1990s, the WBG created the first mechanisms through which affected non-state
94. The only partial exceptions to this second point are the World Bank Group, which has
established independent accountability mechanisms to investigate complaints brought by groups
of two or more individuals who claim they have been harmed by the Bank‘s failure to follow its
own operational policies and procedures in its operations, and the United Nations Development
Program, which has established a similar mechanism. See infra notes 100–101, 107 for further
discussion of these accountability mechanisms.
95. Georges, supra note 93, at 247.
96. See generally Pensioners‘ Union of the Agric. Bank of Greece (ATE) v. Greece, 2012
E.C.S.R. 80; COMMITTEE FOR THE ABOLITION OF ILLEGITIMATE DEBT, Preliminary Report of the
Truth Committee on Public Debt (June 18, 2015), http://cadtm.org/Preliminary-Report-of-theTruth; Margot E. Salomon & Olivier De Schutter, Economic Policy Conditionality, SocioEconomic Rights and International Legal Responsibility: The Case of Greece 2010-2015 (Dec.
15, 2015); Matthias Goldmann, Human Rights and Sovereign Debt Workouts, in MAKING
SOVEREIGN FINANCING AND HUMAN RIGHTS WORK 79 (Juan Pablo Bohoslavsky & Jernej L.
Cernic eds., 2014); INDEPENDENT EVALUATOIN OFFICE OF THE IMF, THE IMF AND THE CRISES
IN GREECE, IRELAND, AND PORTUGAL (2016).
97. See generally WBG, World Bank Operating Procedures, Operating Procedures 2014
(Apr. 2014), http://ewebapps.worldbank.org/apps/ip/PanelMandateDocuments/2014%20Updated
%20Operating%20Procedures.pdf; Ibrahim Shihata, THE WORLD BANK INSPECTION PANEL: IN
PRACTICE (2000); Daniel D. Bradlow & Sabine Schlemmer-Schulte, The World Bank’s New
Inspection Panel: A Constructive Step in the Transformation of the International Legal Order, 54
HEIDELBERG J. INT‘L L. 392 (1994); Daniel D. Bradlow, International Organizations and Private
Complaints: The Case of the World Bank Inspection Panel, 34 VA. J. INT‘L L. 553 (1994); Daniel
D. Bradlow, Private Complainants and International Organizations: A Comparative Study of the
Independent Inspection Mechanisms in International Financial Institutions, 36 GEO. J. INT‘L L.
403 (2005).
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actors could seek to hold the Group accountable for its actions. It created the
Inspection Panel to deal with cases relating to the IBRD and IDA and the
Compliance Advisor Ombudsman (CAO) to deal with cases relating to the work
of the IFC and MIGA. These mechanisms were carefully crafted so as to be
consistent with the immunity of the WBG and with the sovereign prerogatives of
the member states. Thus, non-state actors can only request the Inspection Panel
to investigate claims that they had been harmed by the failure of the WBG to
comply with its own operational policies and procedures. They cannot request
investigations of the actions of the sovereign borrower. The CAO, which only
deals with private sector projects, is able to offer affected parties both compliance
review and problem-solving opportunities. However, in both cases, the outcomes
of the accountability mechanism are at most advisory and the senior leadership of
the institution are free to accept or reject the findings of the mechanism.
Parts of the U.N. have also recognized that they need to provide some form of
independent accountability mechanism. The U.N. Development Programme has
created an independent accountability mechanism to ensure that it complies with
its own policies and procedures in its activities. The mechanism is relatively new
and so it may be too soon to judge its effectiveness. Similarly, the Security Council
recognized that its sanctions regimes may result in individual citizens being
unfairly targeted for sanctions and it created an ombudsman with the power to
investigate cases of people who allege that they have been wrongly included on the
U.N. sanctions list. To date, the U.N. has not created any analogous permanent
mechanisms to deal with the problems that have arisen in other U.N. activities,
98. See generally About Us, THE WORLD BANK INSPECTION PANEL,
http://ewebapps.worldbank.org/apps/ip/Pages/AboutUs.aspx (last visited Feb. 17, 2017);
International Bank for Reconstruction and Development & International Development
Association, World Bank Inspection Panel No. IBRD 93-10, IDA 93-6 (Sept. 22, 1993),
http://ewebapps.worldbank.org/apps/ip/PanelMandateDocuments/Resolution1993.pdf.
99. Our Mandate, OFFICE OF THE COMPLIANCE ADVISOR/OMBUDSMAN, http://www.caoombudsman.org/; http://www.cao-ombudsman.org/about/whoweare/ (last visited Feb. 16, 2017).
100. See Georges, supra note 93, at 247 (stating that IOs are generally immune and not
accountable to citizens of the countries they interact with) .
101. WBG, How to File a Request for Inspection to the World Bank Inspection Panel:
General Guidelines 3, http://ewebapps.worldbank.org/apps/ip/Documents/Guidelines_How%20to
%20File_for_web.pdf (last visited Feb. 27, 2017).
102. See id. (indicating a panel is a mechanism for people who have complaints based on
harm).
103. How We Work: Compliance, OFFICE OF THE COMPLIANCE ADVISOR/OMBUDSMAN,
http://www.cao-ombudsman.org/howwework/compliance/ (last visited Feb. 17, 2017).
104. Jam v. International Finance Corporation, 172 F. Supp. 3d 104 (D.C. Cir. 2016).
105. See U.N. DEV. PROGRAMME, Social and Environmental Compliance Review and
Stakeholder Response Mechanism, http://www.undp.org/content/undp/en/home/operations/acco
untability/secu-srm/ (last visited Feb. 27, 2017) (providing overview of social and environmental
standards).
106. Case C-402/05 P & C-415/05 P, Yassin Abdullah Kadi & Al Barakaat Int‘l Found. v.
Council of the E.U. & Comm‘n of Eur. Cmtys., 2008 E.C.R. I–6351; The Office of the
Ombudsperson to the ISIL (Da’esh) and Al-Qaida Sanctions Committee, OFFICE OF THE
OMBUDSPERSON, https://www.un.org/sc/suborg/en/ombudsperson (last visited Feb. 17, 2017).
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such as operating refugee camps, temporarily assuming some governmental
powers during transition periods in their member states, and providing support to
states dealing with natural disasters.
The IMF faces a more complex situation than the WBG or the U.N. Given its
macro-economic focus, its operations usually have society-wide impacts. It is
harder to attribute actions that directly affect clearly identifiable groups of
individuals to the IMF. Nevertheless, the IMF has also recognized that its
expanding operations require it to be more responsive to the concerns of its various
stakeholders. It has created the Independent Evaluation Office partially to
conduct studies that address these concerns. While the Office does invite
comments on its proposed work plan, it does not have a mechanism for formally
receiving complaints or requests for investigations from affected parties. It also
does not have the mandate to make findings regarding impacts on specific groups
of individuals.
It is clear from this brief description of the public accountability situation in
these three IOs that they appear to acknowledge that their relationship with the
citizens of their member states is changing and that this has implications for their
accountability. However, none of them seem willing to acknowledge that these
changes might require adjustments in their immunity or require them to waive their
immunity in certain cases.
III. IO OBLIGATIONS UNDER CUSTOMARY INTERNATIONAL LAW
The IOs‘ position on immunity is intriguing. All of them are subjects of
international law, and, as a consequence, they are bound by whatever treaties they
have signed and by customary international law. To date, while the U.N. has
sponsored a number of human rights treaties, none of these IOs are signatories to
107. See What We Do, U.N., http://www.un.org/en/sections/what-we-do/ (last visited Feb.
17, 2017) (explaining that the U.N. is involved in a plethora of activities globally, ranging from
building peace to humanitarian aid).
108. See Making the IMF’s Independent Evaluation Office (EVO) Operational, INT‘L
MONETARY FUND (Aug. 7, 2000), http://www.imf.org/external/np/eval/evo/2000/Eng/evo.htm
(stating that the creation of the EVO was to enhance the learning culture within the IMF, help
build the IMF‘s external credibility, and promote greater understanding of the IMF‘s work).
109. INDEPENDENT EVALUATION OFFICE OF THE INT‘L MONETARY FUND, http://www.ieoimf.org/ieo/pages/IEOHome.aspx (last visited Feb. 27, 2017).
110. Id.
111. Id.
112. See Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
Advisory Opinion, 1980 I.C.J. 73, 89–91 (Dec. 20) (―International organizations are subjects of
international law and, as such, are bound by any obligations incumbent upon them under general
rules of international law, under their constitutions or under international agreements to which
they are parties.‖); see generally Jan Wouters & Philip De Man, International Organizations as
Law-Makers, in RESEARCH HANDBOOKS ON THE LAW OF INTERNATIONAL ORGANISATIONS 190
(Jan Klabbers & Åsa Wallendahl eds., 2011) (―study[ing] the impact of international
organizations on the adoption of treaties and the development of customary international law‖).
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any relevant human rights treaties. However, customary international law has
evolved since these IOs were created. At the time of creation of the U.N., IBRD,
and IMF, the international community had not adopted the Universal Declaration
of Human Rights. Since its adoption in 1948, at least some of its provisions have
become part of customary international law. Two related provisions that have
attained this status are Article 8, which states that ―everyone has the right to an
effective remedy‖ in national tribunals, and Article 10, which states that ―everyone
is entitled to a fair and public hearing by an independent and impartial tribunal, in
the determination of his rights and obligations.‖ Not only are these provisions an
expression of the practice of most states but they are recognized as legal obligation
by most states. Almost all states have signed and ratified international treaties
that enshrine these principles. They are incorporated into the International
Covenant on Civil and Political Rights; the International Convention on
Elimination of All Forms of Racial Discrimination; the American Declaration on
the Rights and Duties of Man; the African Charter on Human and Peoples‘
Rights; the Arab Charter on Human Rights; the European Convention for the
Protection of Human Rights and Fundamental Freedoms; the ASEAN Human
113. See Status of Ratification Interactive Dashboard, UNITED NATIONS HUM. RTS. OFF.
HIGH COMMISSIONER, http://indicators.ohchr.org/ (last visited Mar. 2, 2017) (listing only
countries as parties to human rights treaties).
114. G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948)
[hereinafter UDHR].
115. DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW 238 (2nd ed.
1999); Christian Dominice, Morgan v. World Bank (Ten Years Later), in IBRAHIM F.I. SHIHATA,
INTERNATIONAL FINANCE AND DEVELOPMENT LAW 155, 165 (2001).
116. UDHR, supra note 114, arts. 8, 10.
117. SHELTON, supra note 115, at 238; A.A. CANCADO TRINDADE, THE APPLICATION OF
THE RULE OF EXHAUSTION OF LOCAL REMEDIES IN INTERNATIONAL LAW 4 (1986).
118. See, e.g., UDHR, supra note 114.
119. International Covenant on Civil and Political Rights art. 2, ¶ 3(a, b), art. 14, ¶ 1, Dec.
19, 1966, K.A.V. No. 2306, 999 U.N.T.S. 171 [hereinafter ICCPR] (including seventy-four
signatories and 168 parties); see also id. General Cmt. 31, ¶ 15 (―Article 2, paragraph 3, requires
that in addition to effective protection of Covenant rights States Parties must ensure that
individuals also have accessible and effective remedies to vindicate those rights.‖).
120. International Convention on the Elimination of All Forms of Racial Discrimination art.
6, approved Mar. 7, 1966, 660 U.N.T.S. 195 (entered into force Mar. 23, 1976) (including eightyeight signatories and 177 parties).
121. American Declaration on the Rights and Duties of Man art. XVIII, Apr. 30, 1948,
K.A.V. 7225.
122. African Charter on Human and Peoples‘ Rights art. 7, ¶ 1, adopted June 27, 1981, 27
I.C.J. 76, 21 I.L.M. 58 (entered into force Oct. 21, 1986) (including all members of the African
Union, fifty-four signatories and parties). This Charter is also known as the Banjul Charter. Id.
123. Arab Charter on Human Rights art. 12, May 22, 2004, 56 I.C.J. 57 (entered into force
Mar. 15, 2008) (having thirteen of twenty-two member states signed and ratified).
124. Convention for the Protection of Human Rights and Fundamental Freedoms art. 13,
Nov. 4, 1950, 213 U.N.T.S. 222 (including forty-seven member states). All Council of Europe
member states are signatories and all new members are expected to ratify the convention at its
earliest opportunity. Id.
OF THE
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Rights Declaration; and the Vienna Declaration and Program of Action.
Moreover, almost all states of the world have incorporated the right to an effective
remedy into their domestic laws. There is no state that has persistently objected
to this right being seen as a principle of customary international law. Thus, it is
clear that the right to an effective remedy is not only part of state practice, but it is
also seen as being a legal obligation (―opinio juris‖), thereby meeting the
requirements for being a principle of customary international law. The fact that
the right to an effective remedy is recognized as a principle of customary
international law means that it is a legally binding obligation on all subjects of
international law, including IOs.
The requirement to provide an effective remedy calls into question the
validity of IOs‘ claim that actions in domestic courts should be dismissed because
of their functional immunity, even if this assertion would result in complainants
being denied an effective remedy. Nevertheless, IOs have received a largely
supportive response from national courts, although the rationale has varied
depending on the courts. European courts, while acknowledging that the IOs
immunity should be respected, have stated that immunity needs to be balanced
against the claimant‘s right to an effective remedy. They have held that IOs‘
immunity should be respected provided they offer the claimants a reasonable
alternative means for obtaining an effective remedy. In the case of employees of
IOs, European courts have usually found that the existence of an administrative
tribunal constitutes a reasonable alternative means for remedy. They have
pointed out that these tribunals have independent judges, offering claimants a
predictable and fair process and the possibility of a meaningful remedy. The
courts have stated that the remedy, to conform to the reasonable alternate means
standard, does not have to be identical to what would be obtainable in a court.
125. Association of Southeast Asian Nations (ASEAN) Human Rights Declaration, General
Princ. 5, Nov. 18, 2012, http://www.asean.org/storage/images/ASEAN_RTK_2014/6_AHRD_Bo
oklet.pdf (ten member states).
126. Vienna Declaration and Program of Action art. 27, July 12, 1993, UN. Doc
A/CONF.157/23 (adopted by 171 states by consensus).
127. See M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 HUM. RTS. L.
REV. 203, 216–18, 229, 263–64 (2006) (discussing a victim‘s right to an effective remedy).
128. See BROWNLIE, supra note 13, at 562 (―The vast majority of States and authoritative
writers would now recognize that the fundamental principles of human rights form part of
customary or general international law, although they would not necessarily agree on the identity
of the fundamental principles‖).
129. See id. at 3, 6–10 (discussing opinio juris within the context of customary international
law).
130. See Waite & Kennedy v. Germany, App. No. 26083/94, 1999 Eur. Ct. H.R. 1 (1999);
Beer & Regan v. Germany, App. No. 28934/94, 1999 Eur. Ct. H.R. 1 (determining whether
applicants had available reasonable alternative means to protect their rights under Convention).
131. Waite & Kennedy, 1999 Eur. Ct. H.R. at 15; Beer & Regan, 1999 Eur. Ct. H.R. at 14.
132. Waite & Kennedy, 1999 Eur. Ct. H.R. at 15; Beer & Regan, 1999 Eur. Ct. H.R. at 14.
133. Waite & Kennedy, 1999 Eur. Ct. H.R. at 9; Beer & Regan, 1999 Eur. Ct. H.R. at 8.
134. See Hof ‗s-Gravenhage 28 september 2007, JAR 2007, 281 m.nt. P.J.M. von Schmidt
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Courts in the U.S. have been much more respectful of IO immunity, based on
the International Organizations Immunity Act (IOIA) and their own precedents.
These courts tend to find that, in the absence of guidance from Congress, they
should continue to hold that the immunity granted by the IOIA is equivalent to
what states had at the time of the enactment of the statute. Courts in other
countries also tend to be very respectful of IO immunity, although there are some
exceptions in cases involving either employees of IOs or parties that have a
contractual relationship with an IO.
IV. IO COMPLIANCE WITH THE RIGHT OF ACCESS TO AN EFFECTIVE REMEDY
IOs‘ international legal obligation to ensure access to an effective remedy
raises three important questions. First, are there any parties that are excluded from
the requirement of access to an effective remedy? Second, what qualifies as an
―effective remedy‖? Third, is any forum empowered to judge if an IO is meeting
its obligation to provide access to an effective remedy? Each of these questions are
discussed below.
A. Are all IO stakeholders entitled to access to an effective remedy?
An IO‘s stakeholders are its member states, employees, creditors, suppliers,
consumers, consultants with which it has a contractual relationship, and those
communities and individuals that are directly impacted by the operations of the IO
or the projects that it helps support. In deciding if an IO meets its obligation to
provide access to an effective remedy, it is necessary to consider each category of
stakeholder separately.
IO member states are able to participate in the governance structures of an IO
and in principle, can hold it accountable through those structures. Specifically, the
member states of the U.N. all participate in the General Assembly and its various
committees. All of the member states of the IMF and the WBG appoint a
representative to the Board of Governors of each institution and are represented on
the Board of Executive Directors of each institution. This does not mean that
each member state de facto has the same voice in the governance of an IO, but it
does mean that, in principle, if a state feels aggrieved by the decisions or actions of
auf Altenstadt (Bertrand/European Patent Org.) (Neth.) (holding that it suffices that the IO
provides comparable legal protection, implying less far-reaching review); Cour du Travail [Cour
Trav.] [Labor Court] 4th ch. Sept. 17, 2003, JOURNAL DES TRIBUNAUX [JT] 2004, 617 (Belg.)
(examining the internal procedure concerning administrative disputes within the IO in detail to
judge whether it was fair and equitable legal process).
135. See, e.g., Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983); Atkinson v. InterAm. Dev. Bank, 156 F.3d 1335 (D.C. Cir. 1998); Brzak v. United Nations, 597 F.3d 107 (2d Cir.
2010).
136. See Mendaro, 717 F.2d at 610, 613–614; Atkinsin, 156 F.3d at 1340; Brzak, 597 F.3d
at 112–113 (all upholding immunity of the IOs, citing the IOIA).
137. See AUGUST REINISCH, INTERNATIONAL ORGANIZATIONS BEFORE NATIONAL
COURTS, 165 (2000) (providing examples of employment immunity).
138. U.N. Charter art. 9; IMF Articles of Agreement, supra note 28, at 1415; IBRD Articles
of Agreement, supra note 30, at 158–72.
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an IO, it can raise them and have them addressed by the governance bodies of the
IO.
The employees of an IO are able to seek an effective remedy for their
employment-related claims in the administrative tribunals of the IO. The
creditors, suppliers, and consultants of an IO are granted access to a remedy
through their contracts with the IO. Usually the contracts will entitle them to take
the IO to arbitration if they are unable to satisfactorily resolve their grievance
through negotiation. Similarly, the consumers of the services of an IO may be
able to rely on contractual rights to resolve their disputes with the IO. For example,
the WBG‘s loan agreements contain an arbitration clause. In the case of the U.N.,
provisions for dealing with disputes are contained in Status of Forces Agreements
and in analogous agreements with those member states on whose territory it has
operations. The IMF maintains that most of its financial transactions with its
member states are not based on contract and so the documentation for these
transactions do not include dispute settlement provisions. Any disputes that may
arise are handled through negotiation or at the Executive Board level, where the
Board member representing the member state or the member state itself will
present its case in the Board discussion.
The one group of stakeholders that does not necessarily have access to an
effective remedy are those non-state actors who do not have a contractual
relationship with the IO. This group would include communities that claim that
they have been harmed by World Bank-funded projects, groups that claim that they
have been harmed by the conditionalities attached to IMF funding, and individuals
and groups that claim that they have been harmed by the acts or omissions of the
U.N. in its various operations. Under current arrangements, these groups cannot
bring a claim against an IO in any domestic court unless either the IO waives its
immunity or the court decides to strip the IO of its immunity. Non-state actors‘
139. August Reinisch, The Immunity of International Organizations and the Jurisdiction of
their Administrative Tribunals, 7 CHINESE J. INT‘L L. 285, 285 (2008).
140. Id. at 288.
141. Id. at 296.
142. See IBRD, GENERAL CONDITIONS FOR LOANS, § 8.04(a) (2012), http://siteResources.
worldbank.org/INTLAWJUSTICE/Resources/IBRD_GC_English_12.pdf (―Any controversy
between the parties to the Loan Agreement or the 28 parties to the Guarantee Agreement, and any
claim by any such party against any other such party arising under the Loan Agreement or the
Guarantee Agreement which has not been settled by agreement of the parties shall be submitted to
arbitration by an arbitral tribunal as hereinafter provided (‗Arbitral Tribunal‘).‖).
143. G.A. Res. 45/595, ¶ 51, Model Status-of-Forces Agreement for Peace-keeping
Operations (Oct. 9, 1990).
144. See generally JOSEPH GOLD, THE LEGAL CHARACTER OF THE FUND‘S STAND-BY
ARRANGEMENTS AND WHY IT MATTERS (1980).
145. Review of the International Monetary Fund’s Dispute Resolution System: Report of the
External Panel, INT‘L MONETARY FUND (Nov. 27, 2001), https://www.imf.org/external/hrd/dr/1
12701.pdf.
146. See PRIVILEGES AND IMMUNITIES IN DOMESTIC COURTS, supra note 42, at 7–11
(discussing IO immunity from legal process).
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own governments are unlikely to take up their case because, in most cases, they
have either actively or passively supported the operation that has caused the
problem. The existing international forums cannot accept these cases. Individuals
and communities do not have access to the International Court of Justice. The
international forums that affected groups can access, such as international human
rights bodies, are not empowered to hear claims directly against IOs because they
are not signatories to the relevant treaties. The one exception is the WBG, which
has created independent accountability mechanisms, specifically to investigate
claims that groups of individuals or communities harmed by the failure of the
relevant institution in the WBG to comply with its own policies and procedures.
However, it is important to note that these mechanisms only have the power to
make findings and, in the case of the CAO, recommendations based on their
investigations.
The lack of effective remedial forums available to these individuals and
communities means that, ironically, the one group of stakeholders that does not
have access to an effective remedy are those IO stakeholders who are the intended
beneficiaries of most IO operations. It is thus this group (hereinafter NonContractual Stakeholders) on which the remainder of this section will focus.
B. Defining an “effective remedy”
The customary international legal principle of a right of access to an effective
remedy does not specify what qualifies as an effective remedy. However, there
are a number of court decisions and international declarations that suggest the
criteria that should be taken into account in deciding if a person is being given an
effective remedy. For example, the Waite & Kennedy case from the European
Court of Human Rights states that all European citizens have a right to an effective
remedy, and that unless IOs provide a reasonable alternative means to a court, the
court may strip the IO of its immunity so that the court can hear the case. In
subsequent cases, the European Court of Human Rights has provided some
guidance on the criteria that should be looked at in determining what counts as a
reasonable alternative means. The criteria are that the forum should be
independent, impartial, fair, and the remedy should be meaningful. In these
147. ―Only States may be parties in cases before the Court.‖ Statute of the International
Court of Justice art. 34, ¶ 1, June 26, 1945, 9 Stat. 1055.
148. Status of Ratification Interactive Dashboard, supra note 113.
149. See Network of Independent Accountability Mechanisms, WORLD BANK,
http://ewebapps.worldbank.org/apps/ip/Pages/Related%20Organizations.aspx (last visited Feb.
27, 2017) (identifying systems within international financial institutions, in addition to WBG‘s
Inspection Panel, to which individuals may direct concerns and receive assistance).
150. SHELTON, supra note 117, at 85.
151. See, e.g., Waite & Kennedy v. Germany, App. No. 26083/94, Eur. Ct. H.R. (ser. A) at
11–12 (1999); Golder v. United Kingdom, App. No. 4451/70, 18 Eur. Ct. H.R. (ser. A) 14 (1975);
Beer & Regan v. Germany, App. No. 28934/94, Eur. Ct. H.R. (ser. A) at 12; Osman v. United
Kingdom App. No. 23452/94, 101 Eur. Ct. H.R. 40 (1998).
152. Golder, 18 Eur. Ct. H.R. at 14; Waite & Kennedy, 1999 Eur. Ct. H.R. at 11–12; Beer
& Regan, 1999 Eur. Ct. H.R. at 12; Osman, 101 Eur. Ct. H.R. at 40.
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cases, the court has usually concluded that the IO offered a reasonable alternative
means because the case involves employees and the IO‘s administrative tribunal
satisfies the four criteria identified above.
The few non-employment or non-contractual cases in which the European
courts have had to determine if an IO is providing a reasonable alternative means
to a court deal with the sanctions regimes that the U.N. Security Council imposed
following the attacks on the World Trade Center in New York in 2001. However,
the focus of these cases has been on the obligations of the European states in
relation to the implementation of these sanctions regimes, rather than on the IO
immunity issue. Nevertheless, it should be noted that these decisions and their
intimation that the U.N. was not offering claimants a fair hearing, contributed to
the establishment of the U.N. ombudsman for dealing with sanctions-related
cases. The few other court decisions dealing with situations involving a tortious
injury allegedly caused by an IO in the course of its operations have upheld the
IO‘s immunity. As a result, these cases do not provide any guidance on what
would be a reasonable alternate forum for resolving these claims.
There are some other sources that can help enrich our understanding of the
criteria to be used in assessing what constitutes a reasonable alternative remedy for
non-contractual stakeholders. One such instrument, albeit non-binding, is the U.N.
Guiding Principles on Business and Human Rights (UNGPs). This is a useful
comparison standard because it explicitly deals with alternative remedies to
judicial forums. It does this in the context of business activities, which are
analogous to the operations of IOs in the sense that both involve projects,
decisions, and activities that directly impact non-contractual stakeholders. The
UNGPs also gain credence from the fact that at least two other sponsors of
international norms for businesses—the Organization for Economic Co-operation
and Development (OECD)
and the International Organization for
153. Beer & Regan, 1999 Eur. Ct. H.R. at 14–15; Waite & Kennedy, 1999 Eur. Ct. H.R. at
15.
154. C–402/05 P and C–415/05 P, Kadi & Al Barakaat Int‘l Found. v. Council & Comm‘n,
2008 E.C.R. I-6351; Al-Jedda v. United Kingdom, App. No. 27021/08, Eur. Ct. H.R. (2011);
Behrami & Behrami v. France, App. No. 71412/01, Eur. Ct. H.R. (2007).
155. Kadi & Al Barakaat Int‘l Found., 2008 E.C.R. I-6351; Behrami & Behrami, 2007 Eur.
Ct. H.R. 1.
156. August Reinisch & Christina Knahr, From the United Nations Administrative Tribunal
to the United Nations Appeals Tribunal – Reform of the Administrative Justice System Within the
United Nation, in MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 447–483 (Armin von
Bogdandy & Rüdiger Wolfrum eds., 2008).
157. See, e.g., Georges v. United Nations, 84 F. Supp. 3d 246, 251 (S.D.N.Y. 2015); Jam et
al. v. Int‘l Fin. Corp., 172 F. Supp. 3d 104, 112 (D.D.C. 2016); see also AUGUST REINISCH, supra
note 137, at 165–66 (providing examples of tort cases where immunity was upheld).
158. United Nations Office of the High Commissioner for Human Rights, Guiding
Principles on Business and Human Rights, U.N. Doc. HR/PUB/11/04, http://www.ohchr.org/Doc
uments/Publications/GuidingPrinciplesBusinessHR_EN.pdf [hereinafter Guiding Principles].
159. Id.
160. Organisation for Economic Co-operation and Development, OECD Guidelines for
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Standardization (ISO) —have seen fit to incorporate the substance of the UNGPs
into their own norms and standards for business conduct and they have influenced
the performance standards of the International Finance Corporation (IFC) and the
commercial bank‘s Equator Principles. Pillar 3 of the UNGPs stipulates that
companies should establish operational level grievance mechanisms as part of their
human rights responsibilities. The commentary to these Principles states that
such mechanisms need to satisfy seven criteria in order to be considered
meaningful and effective. These criteria, which are set out in Principle 31, state
that the mechanism must be legitimate, accessible, predictable, equitable,
transparent, rights compatible, and a source of continuous learning.
There is considerable overlap between these criteria for identifying an
effective remedy and the situation of an effective remedy in the IO context. They
both require that the mechanisms are impartial, fair, and offer a meaningful
remedy. In addition, given the fact that many of the claimants are likely to lack
legal expertise, it is desirable that the mechanisms be easily accessible. Finally, in
order to enhance confidence in their decisions, the mechanisms should be
independent. In sum, this means that the criteria for determining the efficacy of the
IO remedy could be: accessibility, impartiality, fairness, independence, and the
meaningfulness of the remedy.
These overlaps in requirements for effective remedies mean that the test of the
adequacy of any IO mechanism will be the extent to which the mechanism,
wherever located, complies with the criteria set out above. Thus, the customary
international law standard can be satisfied regardless of whether the remedy is
obtained from an IO directly, or from some other international or domestic body.
The independent accountability mechanisms established by the WBG and the
U.N. Development Programme purport to offer the relevant stakeholders a
qualifying remedy but do not unequivocally meet the above criteria. They are
accessible to the stakeholders who meet their jurisdictional requirement. Their
procedures are only partially transparent because the complaining party knows
what the procedures are, but they are not necessarily kept informed about what is
happening at each step in the process. The procedures are only partially fair
because, while the complaining party is able to present information to support its
Multinational Enterprises (May 25, 2011), http://www.oecd.org/daf/inv/mne/48004323.pdf.
161. International Organization for Standardization, ISO 26000 Guidance on Social
Responsibility (Nov. 1, 2010), https://www.iso.org/obp/ui/#iso:std:iso:26000:ed-1:v1:en.
162. Performance Standards on Environmental and Social Sustainability, INT‘L FIN. CORP.:
WBG (Jan. 1, 2012), http://www.ifc.org/wps/wcm/connect/115482804a0255db96fbffd1a5d13d2
7/PS_English_2012_Full-Document.pdf?MOD=AJPERES.
163. EQUATOR PRINCIPLES (June 4, 2013), http://www.equator-principles.com/resources/eq
uator_principles_iii.pdf.
164. Guiding Principles, supra note 158, at 31.
165. Id. at 34.
166. Id. at 33–34.
167. Operating Procedures, WORLD BANK: INSPECTION PANEL, http://ewebapps.worldban
k.org/apps/ip/PanelMandateDocuments/2014%20Updated%20Operating%20Procedures.pdf;
U.N. Dev. Programme, supra note 105.
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claim and will be offered an opportunity to meet with the mechanism, it is not
necessarily given an opportunity to respond to the evidence and arguments
presented by the IO‘s management. The mechanisms are not clearly impartial
because their decision-makers, their Boards or their senior management, retain
final decision making powers. Moreover, it is not assured that the mechanism
can provide the complainants with a meaningful remedy because they only have
investigatory and/or advisory powers, and their findings and recommendations are
non-binding. The problematic nature of this situation is evident from the fact that
there have been cases in the WBG where the Board has instructed the management
to follow up on the findings or recommendations of the mechanism and correct the
situation, but it has failed to do so, sometimes without any consequences for the
management.
C. Who can judge if the IO is giving an effective remedy?
It is not clear that a state, which is one subject of international law, has the
power to sit in judgment over how another subject of international law, an IO,
implements its customary international law obligation to provide an effective
remedy. The effect of each state being able to determine for itself that an IO is
meeting its international legal obligations could be to empower each state to
interfere with the IO‘s operations. This could lead to states reaching mutually
inconsistent decisions on how well the IO is meeting its international obligation
and on what, if any, corrective action the IO needs to take to comply with this
obligation. This situation would inevitably adversely affect the ability of the IO to
perform its mandated functions. This situation would also be incompatible with the
rationale for granting IOs‘ functional immunity. On the other hand, if the states
cannot intervene to offer a reasonable alternative remedy to its citizens when they
are harmed by IO actions, they may, in effect, be assisting an IO to violate its
international legal obligations.
One way for the state, or at least its courts, to resolve this dilemma is to
submit claims against an IO to the following test. Initially, they need to determine
if the IO is offering any form of remedy to the claimant. If so, the court needs to
decide if the remedy satisfies the criteria for an effective remedy, namely, that it is
accessible, independent, impartial, fair, and offers a meaningful remedy. If the
remedy offered by the IO satisfies all of these criteria, the courts should dismiss
the claim. If it only satisfies some criteria, the court should determine if the
imperfect remedy offered by the IO is capable of granting the injured party a
168. Operation Procedures; supra note 167; U.N. Dev. Programme, supra note 105.
169. Operation Procedures; supra note 167; U.N. Dev. Programme, supra note 105.
170. Operation Procedures; supra note 167; U.N. Dev. Programme, supra note 105.
171. Centre for Research on Multinational Corporations, Glass Half Full? The State of
Accountability in Development Finance (Jan. 2016), https://www.somo.nl/glass-half-full-2/.
172. Cf. Christopher A. Whytock, Foreign State Immunity and the Right to Court Access,
93 B.U. L. REV. 2033, 2034–35 (2013) (discussing the tension between foreign state immunity
and the right to court access).
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reasonable alternative level of relief to what a court could give. If the court
determines that the IO‘s mechanism is able to offer reasonably comparable relief,
it should respect the immunity of the IO and dismiss the case. If the court cannot
make such a determination, it should accept the case and deny the IO‘s claim for
immunity.
The proposed test thus protects both the rights of the injured party to an
effective remedy and the immunity of any IO that is meeting its own international
legal obligation to provide access to an effective remedy. It will only enable a
court to intervene in cases where an IO is not offering a remedy that meets the
basic criteria for effectiveness. An IO, therefore, can always preserve its immunity
from domestic jurisdiction by ensuring that it offers all its stakeholders an effective
remedy.
V. CONCLUSION
This article has argued that the doctrine of functional immunity needs
updating. IOs, over time, have come to play a more extensive role in the affairs of
their member states than their founders anticipated. In many states, they have in
effect, if not intent or in form, become part of the policy-making process in the
state. As a result, the doctrine of immunity that was developed to protect
institutions from interference by their member states is no longer appropriate
without adaptation. It should be adjusted to state that IOs should only have
immunity from suit if they can demonstrate that they are offering an internationally
legally compliant effective remedy to all their stakeholders. If IOs cannot satisfy
this test, they should lose their immunity and the relevant court should hear the
case against them.